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Justice 1
Justice 1
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ADVANCED JURISPRUDENCE
MODULE OVERVIEW:
For centuries, human society is constantly assessed with the principle of social justice.
Yet the demands and principles of social justice are not always clear. What is social
justice? Why does social justice matter? Is it concerned with equal opportunity or
outcome or distribution of resources or capabilities or removal of poverty or creation of
just institutions? As a result, there are great theoretical disagreements on the issues and
remedies of the social justice concepts. For example, John Rawls’ egalitarian overtones
of social justice was criticised by the libertarian scholars. Friedrich Hayek regarded
social justice as a ‘weasel word’, while Robert Nozick argued that if individuals have
acquired their property through just transactions, then whatever results is just. On the
other hand, Amartya Sen and Martha C. Nussbaum approached the question of justice on
a totally different terrain of ‘capability’. In this background, we aim to explore broad
context of social justice issues in different theoretical frameworks through the writings
and opinions of eminent thinkers like John Rawls, Friedrich Hayek, Robert Nozick,
Amartya Sen, and Martha C. Nussbaum. In this process, we think, it is also essential to
understand the relationship between theories of justice and the values of liberty,
equality and capability together.
OBJECTIVES
After studying this module you should be able to:
understand the meaning and nature of social justice;
understand the overarching theoretical frameworks of social justice developed
by John Rawls, Friedrich Hayek, Robert Nozick, Amartya Sen, and Martha C.
Nussbaum
articulate your own positions in a clear, coherent and logical manner on the
issues of social justice; and
examine issues concerning social injustice, and critically analyse them with
remedial tools.
INTRODUCTION:
The term ‘social justice’ in the modern sense has been
used to ensure social well being of the people. It is
generally argued that in conditions of social justice,
people are "not be discriminated against, nor their
welfare and well-being constrained or prejudiced on
the basis of gender, sexuality, religion, political
affiliations, age, race, belief, disability, location, social
class, socioeconomic circumstances, or other
characteristic of background or group membership"
(Toowoomba Catholic Education, 2006)1. However, as
a distinctive concept, social justice is concerned with
the just distribution of resources, opportunities, and privileges in the society as well as
wages, profits, housing, medical care, welfare schemes to meet the principle of justice.
In a word, social justice is all about ‘who should get what and how’. Opinions of the
political thinkers are highly divided on ‘what is called just distribution.’ As a result, a
number of contrasting principles of social justice came into effect like ‘to each according
to his needs’, ‘to each according to his rights’, ‘to each according to his deserts’, ‘to each
according to his labour’, and ‘to each according to his capability.’ To address the issues of
social justice more seriously, we will focus on the work of five thinkers, Rawls, Friedrich
Hayek, Robert Nozick, Amartya Sen, and Martha C. Nussbaum.
1
Cf. Matthew Robinson, “What is Social Justice?”, Department of Government and Justice Studies,
Appalachian State University
http://gjs.appstate.edu/social-justice-and-human-rights/what-social-justice
JOHN RAWLS: EGALITARIAN
ABOUT JOHN RAWLS DISCOURSE ON SOCIAL JUSTICE
The egalitarian discourse on ‘social
justice’ reached its high point in 1971
with the publication of A Theory of Justice,
written by the Harvard philosopher John
Rawls. To Rawls, social justice is about
assuring the protection of equal access to
liberties, rights, and opportunities, as
well as taking care of the least
advantaged members of society. In this
pursuit, Rawls argues for a theory of
justice, which is based on the
maintenance of the following two
principles.
1. Each person is to have an equal
right to the most extensive basic
liberty compatible with a similar
liberty for all.
2. Social and economic equalities are
to be arranged so that they are
both (a) to the greatest benefit of
• John Bordley Rawls (1921-2002) was an the least advantaged; and (b)
American philosopher and a prominent attached to offices and positions
figure in moral and political philosophy. to all under conditions of fair
• His father was a prominent lawyer, his equality of opportunity.
mother a chapter president of the League Rawls’ first principle is a familiar one –
of Women Voters. each person has an equal right to free
• Rawls studied at Princeton, where he was speech, association, conscience, thought,
property, a fair trial, to vote, hold
influenced by Wittgenstein's student
political office if qualified and so on.
Norman Malcolm; and at Oxford, where he Principle 2a is also familiar – jobs and
worked with H. L. A. Hart, Isaiah Berlin, services should be open to all (equal
and Stuart Hampshire. access), but furthermore society should
• In 1962 Rawls joined the faculty at be so arranged that as far as possible
Harvard, where he taught for more than people have an equal opportunity to get
thirty years. jobs and gain access to services. Principle
2b- famously known as the difference
• Rawls lost his Christian faith as an
principle-is the novel one and points
infantryman in World War II on seeing the towards a significant measure of social
horrors of the Holocaust. equality but not in the absolute sense.
• Rawls received both the Schock Prize for Rawls' conception of social justice asserts
Logic and Philosophy and the National that material inequalities are only
Humanities Medal in 1999. justifiable when they work to the
advantage of the less well-off. Rawls
• Rawls's books include A Theory of Justice
explains the difference principle this
(1971); Political Liberalism (1993), and way: "To say that inequalities in income
The Law of Peoples (1999)
•
and wealth are to be arranged for the greatest benefit of the least advantaged simply
means that we are to compare schemes of cooperation by seeing how well off the least
advantaged are under each scheme, and then to select the scheme under which the least
advantaged are better off than they are under any other scheme."
By the least advantaged, Rawls is referring to those who lack what he calls "primary
goods". Primary goods, according to Rawls, include "things needed and required by
persons seen in the light of the political conception of persons, as citizens who are fully
cooperating members of society, and not merely as human beings apart from any
normative conception. These goods are things citizens need as free and equal persons
living a complete life; they are not things it is simply rational to want or desire, or to
prefer or even to crave". Such goods include:
The basic rights and liberties: freedom of thought and liberty of conscience, and
the rest;
Freedom of movement and free choice of occupation against a background of
diverse opportunities, which opportunities allow the pursuit of a variety of ends
and give effect to decisions to revise and alter them;
Powers and prerogatives of office and position of authority and responsibility;
Income and wealth, understood as all-purpose means (having an exchange
value) generally needed to achieve a wide range of ends whatever they may be;
and
The social bases of self-respect, understood as those aspects of basic
institutions normally essential if citizens are to have a lively sense of their worth
as persons and to be able to advance their ends with self-confidence.
Rawls also argues that the first principle-the basic liberty principle- has ‘lexical priority
in case of conflict over the second principle. That means you cannot sacrifice liberty for
economic justice. You must satisfy fully the equal liberty principle before applying the
difference principle. Similarly, the principle of fair equality of opportunity has priority
over the difference principle.
Rawls specifies that "fair equality of
opportunity" requires "not merely that
public offices and social positions open in
ABOUT FREDERICH VON HAYEK the formal sense, but that all should have a
fair chance to attain them."
Nevertheless, Rawlsian idea of ‘social
justice’ became subject to the intellectual
and political onslaught in the name of
economic efficiency. The pursuit of social
justice is harming economic growth and to
the detriment of all members of the society.
The intellectual strand of this reaction was
developed by Frederich von Hayek and
Robert Nozick. Let us look at their
conception of justice.
It is clear from the above principle that like Hayek and many other libertarians, Nozick
was also deeply suspicious about the idea of social justice and rejected absolutely the
moral basis of the redistribution of wealth and resources. He argues that if wealth is
transferred from rich to poor, either within a society or between societies, it is only as
an act of private charity, undertaken through personal choice rather than moral
obligation.
Amartya Sen, through his recent intervention, The Idea of Justice and earlier works like
Development as Freedom, On Economic Inequality, Poverty and Famines approached the
question of justice differently. Sen argues that the classical theories of social justice are
in error while addressing the questions of' capability.
In Development as Freedom, Se argues that what matters is not what resources you have
or what level of subjective welfare you can achieve, but rather what your resources and
other opportunities allow you to ‘do and be.’ Sen calls this phenomenon as your
‘capability function.’ For Sen, different individuals might need different packages of
resources to function to the same degree, dependent on their particular needs. Sen
further argues that a functioning is an ‘achieved’ being or doing- being healthy, having
control over your environment, and so on- whereas a capability is, in effect, one’s
opportunity to achieve a functioning. For example, if a rich person decides to fast, he or
she may lack the functioning of nutrition, but he or she still has the capability. The
person could nourish himself if he or she were choose to do so. Sen thus propounds that
government should be concerned with ensuring the concrete capabilities of their
citizens rather than functionings.
Nussbaum not only strengthened the capability approach but also produced a
provisional list of capabilities in her book Women and Human Development: The
Capabilities Approach, which she claims has universal validity and should be enshrined
in every country's constitution
Life: Being able to live to the end of a human life of normal length.
Bodily health: Being able to have good health, including reproductive health; to
be adequately nourished, to have adequate shelter.
Bodily integrity: Being able to move freely from place to place; being able to be
secure against assault, including sexual assault, child sexual abuse, and
domestic violence; having opportunities for sexual satisfaction and for choice in
that matter of reproduction.
Sense, imagination and thought: Being able to think, imagine and reason- and to
do these things in a way informed and cultivated by an adequate education.
Freedom of speech, expression and religion.
Emotions: Being able to have attachments to things and people outside to
ourselves; to love those who love and care for us.
Practical reason: Being able to engage in critical reflection about the planning of
one’s life.
Affiliation: Being able to live with and toward others, to recognise and show
concern for other human beings, to engage in various forms of social
interaction. Having the social bases of self-respect and non-humiliation. Not
being discriminated against on the basis of gender, religion, race, ethnicity, and
the like.
Other species: Being able to live with concern for and in relation to animals,
plants, and the world of nature.
Play: Being able to laugh, to play, to enjoy recreational activities.
Control over one’s environment: Being able to participate effectively in political
choices that govern one’s life. Being able to have real opportunity to hold
property. Having the right to seek employment on an equal basis with others.
SUMMARY
CONCLUSION:
To sum up, the term ‘social justice’ is widely used in political and philosophical debates,
and fiercely contested. This has given rise to diverse perspectives on social justice. Many
of these concentrate on devising principles for the distribution of scarce goods.
However, by the late 1970s, the goal of social justice was challenged and was largely
supplanted by an emphasis on economic growth and individual freedom.
However, Rawlsean pursuit of social justice was treated detrimental to all the members
of the society by the intellectual strand of libertarianism developed by Hayek and
Nozick. They argued that government action to enforce a theory of social justice
interefered with the liberty of individuals to govern their own lives and property. But,
more fundamentally, Hayek and Nozick both argued that society as a whole cannot be
assessed as just or unjust.